The motion is in order. To the motion.

Question.

Question has been called. All those in favour? All those opposed? Motion is carried.

---Carried

We will deal with Tabled Document 3-12(3), Report of the Commission for Constitutional Development. We will take a short recess.

---SHORT RECESS Tabled Document 3-12(3): Report Of The Commission For Constitutional Development, Appearance By Members Of Commission For Constitutional Development

Does the committee wish to invite J.W. Bourque, chairperson, George Braden, deputy chairperson, Mr. Francois Paulette, Ms. Bertha Allen and Mr. Richard Hardy into committee? Agreed?

Agreed.

---Agreed

Mr. Kakfwi, before you make your opening remarks, can you introduce your witnesses for the record. Thank you.

Introductory Remarks

Thank you, Mr. Kakfwi. I wonder if Mr. Bourque would like to make any opening remarks.

Presentations By Members Of Commission For Constitutional Development

Mr. Chairman, thank you very much for inviting the commission to appear before the committee of the whole. With your permission, my colleagues and I will take the committee through the commission's report and, hopefully, this will contribute to some debate. To begin, I think it would be useful to do a brief summary of how the commission accomplished their work.

The commission was established in the summer of 1991, with a mandate to recommend principles and institutional options for the new western territory, following division. To stimulate debate and provide some background information, the discussion paper entitled, "How Can We Live Together?" was released in the fall of 1991. Funding was provided to aboriginal organizations and a number of other public interest groups to stimulate input into our report.

Public hearings began in November, 1991, and we visited 12 communities before Christmas. Early in January we held a workshop in Calgary where we brought in constitutional experts and leading lawyers across the country dealing with aboriginal rights. Based on the information we received from the first round of hearings and the results and recommendations from the workshop, we released an interim report in February, 1992. This report was released to the public to test whether we were on track or whether we were hearing accurately what the public have to say.

After that, aboriginal organizations and public interest groups received additional funds to be able to respond in detail. Another round of public hearings was held in March and April in nine communities. I would like to add that some of these smaller communities came to the public hearings in the larger communities. We tried to cover as many communities as possible. During February and March, individual commissioners travelled throughout the territories. At that time we covered every community in the territories, holding informal information sessions to explain what the interim report was all about. The final report was completed and presented to the political leaders in late April.

I would like to say here that the commission did not feel it was our responsibility in any way to lead public opinion. What we sought to do was gather information as much as possible from the public. These are copies of the transcripts of testimony which we received in public hearings. We tried as best as we possibly could to reflect the views of the public in a short report. That was our main objective.

We feel very strongly that leading public opinion is a job of politicians, and we are non-political. We wanted to, as much as possible, relay or convey what we heard at the community level.

Mr. Chairman, with that I would like to ask Mr. Braden to do an overview.

Thank you. Mr. Braden.

Thank you, Mr. Chairman. Before each Member provides some comments on specific sections and recommendations of the report, I think it is important to outline the context in which the commission operated and some of the things which have transpired since we have concluded our work last year.

First, as our chairman has said many times in previous appearances, the Northwest Territories, as we have known it for the last two decades, is on the verge of significant change and, indeed, is going through change constitutionally and politically right now. During its operation, the commission was very much aware of territorial and national events which would eventually contribute to change. I will list a few of them which have taken place since we have concluded our work. For example, on March 4, 1992, residents voted in favour of a boundary to divide the Northwest Territories. Since then, the Gwich'in claim with its self-government framework agreement has been proclaimed by parliament. The Sahtu Dene and Metis are close to a similar agreement with the federal government. The Dogrib nation is proceeding with regional claims negotiations. Dene in the South Slave are using the treaty land entitlement process to renegotiate their treaty. This, we understand, has some implications for Metis and, perhaps, Mr. Hardy can comment on that later. Inuvialuit have expressed interest in pursuing regional self-government negotiations with Ottawa. Our government is proceeding with an ambitious community transfer program. Legislation is expected to be tabled before the House of Commons in the coming weeks to ratify the TFN claim and establish a Nunavut territory. We understand, as Minister Kakfwi indicated a moment ago, that agreement has been reached on proceeding with the next phase of developing a western constitution and institutions of government.

Mr. Chairman, presentations to our commission overwhelmingly endorsed the need for change to our system of government. I think the list which I have just provided to you clearly demonstrates that during the life of the commission change was already taking place or was clearly being contemplated for the near future. That is the context in which we were operating and, presumably, it will be the context within which phase II will have to operate, as well.

Second, when the commission was conducting hearings and preparing its reports, it was expected that the Canadian Constitution would be amended as well. A number of major achievements were made by northern Legislatures, northern governments and aboriginal peoples in the package which Canadians voted on last October. The Charlottetown accord, particularly as it related to the inherent rights of aboriginal people, would have complimented and supported the work of this commission. However, the accord was rejected by Canadians and the consequences of this decision will have to be taken into account in the next phase of developing a constitution and institutions of government for the west. While we suffered a set back last October, numerous opportunities exist from a legal, constitutional and political basis in the north which we know are not present in the south where aboriginal peoples do not form a majority and where provincial governments are firmly in place.

So, that is another issue that phase II is going to have to take into consideration. There will be some measures, nationally, which may have some impact on your work. For example, the recommendations of the royal commission but by and large you are not working with that kind of framework which was in place in the Charlottetown agreement.

The commission's final report presents principles to guide constitutional change, develop a new model of government, and a draft bill to assist in the next phase of work on the new western territory constitution. We have said that the commission's report is not the final blueprint but it represents the best effort we could produce in the time available. More over, it does not represent the ideal that anyone of us or the public may wish, but we believe it is a starting point for the next phase.

Last April, we reported that the commission had gone as far as it could under its mandate and we are pleased to be present today to discuss the product of our work. We are pleased, as well, Mr. Chairman, that an accommodation appears to have been reached among western leaders to start phase II of the process.

I would now like to ask Ms. Allen to address a couple of the initial sets of principles and recommendations in the report. Thank you, Mr. Chairman.

Thank you. Ms. Allen.

I will be commenting on the name and geographical area for the territory. First, a constitution must state the name and describe the geographical area of the new western territory. During our hearings there was overwhelming support for the principle that the new territory name should be taken from an aboriginal language. The commission recommended the selection process for the new territory's name decided on in phase II.

Foundations Of New Western Territory

Secondly, there was general support for the principle that a western constitution should affirm our collective identity and aspirations. Therefore, we recommended that a constitution should contain a preamble which describes the peoples who inhabited and settled the territory, as well as a statement on the values which we all have in common.

The commission also believed that phase II should develop the statement which would identify the fundamental responsibility we individually and collectively have to each other, and the physical environment where we live.

The Fundamental New Rights And Social Charter

The commission gave particular attention to the principle that both individual and collective rights should be reflected in a constitution for the west. For example, we recommended that the rights and freedoms set out in the Canadian Charter of Rights should be re-affirmed. We recommended that more work be done in phase II on women's rights, seniors' rights, humans' rights, workers' rights and environmental rights. A major recommendation was made with respect to the need for a social charter which should include a statement of social principles and governments' obligation to achieve these principles.

Mr. Chairman, Mr. Paulette will now provide some comments.

Thank you. Mr. Paulette.

I am going to take the privilege of standing up. I have been sitting for a couple of hours and I feel like I need to stretch. I want to slow the process down a bit. I want to say there are members of the Treaty 8 Tribal Council who are sitting in the back. Some are chiefs, speakers, councillors and managers. They are here on a workshop to develop a framework for the kind of government they want in their area. The process is happening along with their negotiations. I also wanted to say that it is with great pleasure that I am here speaking. My prime focus today is going to be on treaties. I am taking this time because I know many Members do not have an understanding of when we talk about treaties. It is very crucial, important, and paramount that Members of this House understand this.

I belong to the Chipewyan nation. I am with the Treaty 8 made in 1899. I also want to say that 1993 has been declared the international year of indigenous people. The theme is called "a new partnership." For me to understand that and for other people to understand it took 500 years to arrive and to accept the concept of partnership. Twenty years ago the Government of Canada recognized, for the first time, aboriginal rights. It was also 20 years ago that caveat, the Paulette case, ruled in favour of Treaties 8 and 11 in the Northwest Territories. Judge Morrow's ruling declared that aboriginal people had over 450,000 square miles of land, rights and interest.

I want to remind you that in 1967 the Government of the Northwest Territories came into existence. This government came into existence without the consent of treaty First Nations. In 1969 the Government of Canada introduced the white paper. The white paper was to assimilate all Indian people in Canada, to put them into the mosaic of what they call "Canadians" where they would do away with their rights, their reservations and so on and so forth. Treaty First Nations in southern Canada south of the 60 parallel lobbied to squash this move and they succeeded. However, north of the 60 parallel this white paper is the blueprint of what is taking place here today. Whether we accept that or not, is another issue. We have been using this word "assimilation" and the white paper is just that.

The oral proclamation in 1763, recognizes Indian sovereignty and their nationhood. It recognizes treaties as making process and protocol from the international perspective. There was an agreement by consent that no one nation would alter, diminish or unilaterally change the direction of those agreements, unless there was consent.

Treaty 8 was made in 1899, Treaty 11 in 1921. This land we all live on, north of the 60 parallel, up to the Arctic coast into the Delta, is a remnant of treaties. When we talk about treaties, the government has their concept of treaty and their obligation to First Nations. I have handed out copies of Treaties 8 and 11. These are the government's fulfilments to treaties. The versions of First Nations is not what you will find in this book. We talk about a great law, and this great law is "as long as the sun shines, the river flows and the grass grows, that we live in peace and harmony." There is no man-made law, or any other law, that supersedes that great law. Treaty 8 and Treaty 11 members still stand by that great law.

Treaties are based on international protocol and consent. It is bilateral, it is nation to nation. If you look on page six, on the report of commissioners, in the third paragraph, it says "We assured them that the treaty would not lead to any forced interference with their mode of life." This mode of life is what they are talking about in the law, this balance, this harmony with nature, spiritually, emotionally, mentally and physically, they will not interfere with that way of life.

It also continues to say that it opened the way to the imposition of any tax. It is black and white. Our people are taxed to this very day, including the GST that we have to pay. Those are not fulfilments of treaties.

If you turn to page 12, the third paragraph says, "The said Indians do hereby seek release, surrender up to the Government of the Dominion of Canada for Her Majesty the Queen and her successors forever, all of their rights, titles and privileges whatsoever to the lands included within the following limits."

My dear friends, in my language, there is no word for "surrender" so how can we have consented to something of that magnitude? You expect the treaties to say "yes" and if they told them "From here on, you are not going to own your land or your rights to the air or the water," that treaty would never have been made.

Foremost, the Indian Act was made in 1867 by the virtue of the BNA Act, that was never told to the Indians when the treaties were being made. When we say "bilateral process" it has to be recognized and confirmed by the treaties. The Imperial Crown, the Government of Canada, is under a continuing obligation to deal directly with the First Nations' signatories to treaties.

According to international and Canadian law, treaties cannot be unilaterally interpreted, denied or limited. A fully informed and written consent is required by both parties to treaties prior to any changes in this bilateral relationship. No form of consent or altering, diminishing, affecting our extinguishment of bilateral relationship has ever been given up by the First Nations' signatories to treaties. We have never given up that consent. We have never surrendered that. "The First Nations' signatories to treaties hereby served notice upon Canada that any other process now, and in the future, not agreed to by the treaty First Nations is a violation of the sacred treaty relationship." This great law is unacceptable.

Treaties entered into between treaty First Nations' signatories and the Imperial Crown sets out the special relationship and obligations flowing from those treaties. The First Nations have a unique and special position in this bilateral process which I am referring to. We are a sovereign and independent nation with our own pre-existing laws, principles and forms of government. We enter into treaties of peace and friendship done by consent. Any changes or amendments to any sections of the Constitution of 1982, including section 91.24, must reflect the spirit and the intent of the treaties as understood by the treaty First Nations. All other amendments must have the consent of treaty First Nations.

My friends, this includes this House. Any changes that you must make in respect to programs and services that flows from treaties, you have to have the consent of treaty First Nations. You cannot bypass that because the consent is what makes treaties. It is very important that we understand this. I am saying this because I do not think the treaty position is ever going to surface in this House, not for a long time, because with this forum we have a very broad, lateral process.

Section 91.24 of the Canadian Constitution is where the Northwest Territories Act is found. The northern accord which you speak of is what the treaty First Nations calls "LRT", lands, revenue and trust. To make any changes to LRT or the northern accord you need the direct consent of treaty First Nations. You cannot unilaterally do that and expect the northern accord to be transferred to this government. The treaty First Nations sitting in this House should understand that.

Community transfers initiative implementation plan, programs and services, section 91.24. You have to have direct consent by treaty First Nations. Consultation does not enter into the discussions, it is consent.

The Status Quo

Everyone talks about the status quo. The way the Treaty 8 First Nations see this, this year is the status quo. This is not acceptable to treaty First Nations and we probably will not embrace this institution for a long time.

When we talk about constitutions and legislation, you do not have to have amendments to the Constitution or legislation to fulfil treaties, it is already there. You do not have to have constitutional amendments or legislation to fulfil this great law, as long as the sun shines the river flows and the grass grows.

Aboriginal First Nations

In this text when we talked about aboriginal self-government, many people spoke about different forms of government. There was exclusive aboriginal governments that were expressed. Treaty First Nations and Metis Nations talk about these types of governments, based on their culture that reflects their nationhood. People talk about treaty First Nations, especially Treaty 8, and the Deh Cho region talked about exclusive aboriginal government based on treaties. There were other people who wanted a combination of aboriginal and public government. That also has to be taken into consideration and finally, public government. If you go through the document, public government was hardly even mentioned. Every treaty First Nations has to be treated according to their treaties, the relationship they have with the Government of Canada.

Interim government has to ensure and support that special relationship with the Government of Canada because treaty First Nations are the only people who have that relationship. This interim government has to relinquish the areas of programs and services to treaty First Nations because that is where it belongs. If you want to talk about transfer, you have to relinquish that to the treaty First Nations because they are the ones who should be administering and should be responsible for the programs and services which flow through treaties.

This treaty making process has been with us for 94 years. When treaty First Nations talk about treaties, it means consent, it means bilateral consent with the Government of Canada. We have to begin to support that when things are changing rapidly here. When Treaty 8 people stand up and say, "We want our own exclusive government," that is exactly what they are talking about because it comes from treaties. Ninety four years, compared to 500 years is very short. Just in the last few years we have begun to talk about self-government. I hope this House can begin to entertain the concepts of nationhood from where the treaties are coming from, to begin to support them.

Finally, your Minister, Mr. Tom Siddon, in Vancouver, British Columbia, set out parameters of a treaty commission. To quote him, he said, "Many people still do not understand the purpose of the treaty commission. Many people believe it is being established to actually negotiate treaty agreements." He continues, "The B C treaty commission is there to facilitate, rather than negotiate, or as the First Nations leadership have suggested, act as people of the process. This very subtle difference speaks volumes about what we have learned over the past few years in this province."

I suggest this very strongly if you want to talk about setting up another procedure for the constitutional process. I also recommend you set up a pilot process for a treaty commission where a process is happening, where you are beginning to fulfil and beginning to understand the making of treaty because it is happening right now in Treaty 8. There are Treaty 11 people who are also pursuing that, so it is happening, it is in the works, we have to deal with it. We cannot put our heads in the snow and expect things are going to be all right. We have to deal with it, it is there.

As I have said, I am probably never going to have another opportunity to talk about treaties. There is probably never going to be another chief who is going to come in here and talk about treaties. That is why I am taking this time to slow down and talk about treaties, from where we see it. It is very important. I honour you for listening to me.

---Applause

Thank you. Are there any further general comments? Mr. Bourque. Mr. Hardy.

Thank you, Mr. Chairman. I am going to speak on those parts of the report which deal with orders of government and the concept of district governments. The whole concept of orders and districts can be summarized in the first recommendation which appears on page 25 of the report. That recommendation reads,

"The commission recommends that the new western territory constitution affirm that all authority to government belongs to the people, collectively and flows collectively to the people collective and flows collectively from them to their institutions of government."

At first glance that may seem like something which is common sense and straightforward. However, if you look at that recommendation in the context of the theory on which this government and this House is established you will see that this is an extremely revolutionary concept. It is revolutionary because the theory on which this government and this House is founded originates some three, four, maybe five hundred years ago when at some point in time the British Crown is supposed to have taken complete sovereignty over all the lands we now occupy. That is the origin on which your government is created and the notion then is that by whatever means the British Crown achieved this authority, it achieved all authority and it is only from the British Crown that our modern day governments get any authority. The flow of that authority began supposedly in 1867 with the British North America Act. When notionally, Queen Victoria said, "All right, you people who are living in Canada, I am going to give you some authority to govern yourselves, and my authority which I give to you, I am going to divide between two types of government, one called the federal government and the other called provincial governments." That authority will be divided in what we now know today as sections 91 and 92 of the British North America Act.

There is no provision made in that act for territorial governments having any authority. As a result of that, those parts of Canada that were not provinces, remained completely under the jurisdiction of the federal government. The federal government decided to give some authority to territorial governments. In our case, that has been done through the Northwest Territories Act, which is an act of the federal government that gives legitimacy to this government and this House. Acting under the authority of the Northwest Territories Act this government and this House then passes acts, such as the Cities, Towns and Villages Act, which gives community governments some authority. Finally, at the bottom of the heap comes the people. In other words, all authority comes from the Crown to the federal government to the Government of the Northwest Territories to the municipal governments and finally we get down to the people.

In the transcripts of our hearings Mr. Bourque introduced to you, there is a list of all of the individuals who appeared in front of us. There is a list of all of the written submissions that were made to us. By and large, the message from the people was that this theory is not correct. The power belongs to the people and flows from them to their institutions of government. What we were told to do, was to take the existing theory of government and turn it on its head, the people would then come from the bottom to the top, and the Crown goes to the bottom. It is not going to be an easy thing to do in light of the history that is behind us. That is the will of the people as was expressed to us in the hearings.

In addition to hearing from the public, as a commission we also initiated a large legal study of our constitutional situation. It is included in this report. It is called "mapping the legal landscape for a constitution for the new western territory." What we had to do, as a commission, was to try and reconcile the wishes of the people of the new western territory with the legal constraints we find ourselves under today, and bringing those two streams together is the recommendation that we have made in our report. To give effect to the view that power flows from the people, we have recommended creation of orders of government and districts of government so that power rests as closely as possible to the people. The advice which we have received is that this is legally possible notwithstanding the current theory under which government is structured.

The report goes on in some detail to recommend how this might be done and suggests possible lists of districts. However, the most important part is the concept of power belonging to people and flowing from them to their institutions of government. If that is accepted, then the whole process that should have taken place 125 years ago may be finally initiated here. Thank you.

---Applause

Thank you, Mr. Chairman. If I just might continue, to add to the revolution here. Constitutions also set out how people are elected or appointed to public office. In our public hearings and in our analysis we heard a number of different views. In the final analysis our recommendations are based on a number of principles including the need to recognize traditional and aboriginal approaches to leadership and more contemporary demands for guaranteed or equal representation in public institutions of government. With this in mind, the commission recommended that district governments have the authority to set the procedures for electing or appointing their law making branches of government.

I will let Bertha comment very briefly on the business of gender representation in the central order of government.

Central Order Of Government

With respect to the central order of government, the commission recommended that phase II examine models to fulfil the goals of guaranteed representation for men, women, aboriginal and non-aboriginal residents.

At this point, I am going to take the opportunity to state a few views on the representation of women on government boards. I think that it just goes to show that women and men have to learn to work more closely together. There is a poor example of when this commission was set up, five men were appointed. The women had to lobby to get a voice of the care givers on this commission. We really thought we got the message across, and low and behold, there was another working committee set up -- who did they exclude? They excluded the women again. Again, we went to lobby to get the voice of the care givers on this commission.

I want to state to this House, to the leadership out in the communities, it is high time they start supporting the care givers. I have done the community visits in three regions where land claims are settled and the message is loud and clear that they want more workshops in leadership, they want more workshops in self-government, they want more workshops in explanation of their land claim, and here they are in areas where there land claim is settled. That is really a strong message that proper work has not been done and proper consultation has not been done.

In conclusion, I want to say that, as women, we want recognition. We do not want to be excluded from any future decision-making body. We want to work with all politicians, whether they be men or women. We do not want to walk one step behind you, we want to walk side by side. Mahsi Cho.

---Applause

Are there any further comments from your group? Mr. Braden.

Constitutional Amendments

Thank you, Mr. Chairman. Finally, constitutions contain provisions for how they can be amended to reflect changing times and circumstances. The commission believes that the people of a new western territory should have the authority to amend their constitution, consistent with the amending formula powers that are currently vested in the provinces. Our report contains some additional detail on how we think this can be accomplished. However, the important point that we heard in all our consultations was that amending constitutions is not just the business of governments, high profile aboriginal leaders or business leaders, provision must be made in the amending formula section of our constitution to allow for referendums and plebiscites where territorial residents are guaranteed a role. You heard earlier on from Mr. Paulette who made a very strong case with respect to the role of consent for aboriginal people in the process of amending the constitution. I will just turn it over to Francois to make a few final comments about phase II of the constitutional process. Thank you, Mr. Chairman.

Thank you. Mr. Paulette.

From a very conservative view, in your book, Working Toward A Common Future, on page 40, at the very bottom of the page it says in section 10, "The current constitution of the Northwest Territories, the Northwest Territories Act, is a federal statute." This means that the Parliament of Canada is legally able to change the way residents of the Northwest Territories are governed, with their consent. Provided that this change does not affect the aboriginal First Nations' rights under section 35 of the Constitution." What this means is that any amendments to this Constitution, now or in the future, needs the direct consent of treaty aboriginal First Nations. The virtue of the way the Canadian Constitution is set out, under section 35 of the Constitution, it recognizes treaty and aboriginal rights. Where the NWT government comes in is under section 91.24 in the NWT Act.

When aboriginal First Nations talk about this amendment, that is where it is flowing from. It is directly flowing from the Constitution, plus the treaty making process that confirms the bilateral, nation to nation, with the federal government.

I am not going to take too much more of your time. In southern Manitoba in a French community, the Manitoba government or a supreme law exclusively ruled in favour of French languages in their culture and schools. It is a major court decision. Here in the Northwest Territories, we do not have that certainty of where aboriginal languages are going, even though the Canadian Constitution is written in a way that treaties have authority over the NWT Act. So we have to move in a direction where we are ensuring that aboriginal languages and culture are exclusive in the schools that reflect the regions and the culture of that nation. That is very important if we are going to continue the existence of aboriginal First Nations.

I also want to say the Metis Nations when they say they want rights in section 91.24, I think that is a very important area to visit. It is not by law that the treaty First Nations excluded them. There are many areas where this House should support the Metis Nations in their fight and their struggle for recognition as Metis Nations, and in the pursuance of their land base. I really support that.

I just want to thank you for asking me once again to come before you. Thank you very much.

---Applause